Sims v William Howard & Son Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE PEARSON,MR JUSTICE WILBERFORCE |
| Judgment Date | 17 February 1964 |
| Judgment citation (vLex) | [1964] EWCA Civ J0217-1 |
| Court | Court of Appeal |
| Date | 17 February 1964 |
[1964] EWCA Civ J0217-1
In The Supreme Court of Judicature
Court of Appeal
From Mr Justice Lyell
The Master of the Rolls (Lord Denning)
Lord Justice Pearson and
Mr Justice Wilberforce
MR MARTIN JUKES, Q. C. and MR STUART-SMITH (instructed by Messrs Gardiner & Co.) appeared as Counsel for the Appellants.
MR PATRICK o'CONNOR, Q. C. and MR O. B. POPPLEWELL (instructed by Messrs W. H. Thompson) appeared as Counsel for the Respondent.
In this case we will give leave to appeal and determine the appeal.
It raises an important point of practice. A workman is suing for damages for personal injuries alleging breaches of statutory duty under the Factories Act and also negligence at common law. Apparently a chain of a crans got hooked up, with the result that a heavy weight fell upon the plaintiff and he was very severely injured. He was so severely injured that it was thought he would be unable to walk and would be on his back all the time. But we have been told there has been considerable improvement in his condition. He can be taken about in a wheelchair and he may get a good deal better. But it is undoubtedly a case of very serious injuries.
The question is: How is it to be tried? The Master and the Judge have ordered trial by jury. The defendants appeal. They say that this Court recently in Hennell v. Ranaboldo. 1963, 1 Weekly Law Reports, page 1391, laid down the principle that a case of this kind should be tried by a Judge alone, unless there is some special circumstance in it. There is nothing here, they say, to show a jury is needed. It is a Factories Act case which involves the interpretation of the words "of good construction" and "free from patent defect". Difficult questions of foreseeability and causation may arise. The only special circumstance is that the injuries were very serioue: and that is not sufficient to call for trial by jury.
At one time it was generally thought that cases of serious injury were particularly suitable for trial by jury. But experience has shown that not to be the case. A jury may find themselves far more puzzled - more at sea - in a very serious case than in a less serious one. If youshould take any one of the twelve and ask him: "What do you think the damages should be?", you will find that, as like as not, he will reply: "I don't know how you can assess this in terms of money. How do you go about it? What are the sort of figures given in cases like this?". And that is the very thing he is never tola. Recent cases show awards of juries which were obviously reached without any knowledge of the usual scale or of the right way to go about it. In the light of these cases it is no longer right to treat serious injuries as particularly suitable for trial by jury. I prefer to take as my guidance Pease v. George, 1960, 1 Weekly Law Reports, page 427. There were very serious injuries indeed. The Judge in Chambers ordered trial by Judge alone. This Court declined to interfere with his decision.
What then is to be done? We are faced with the problem that in the case of Hope v. Great western Railway 1937, 2 King's Bench, page 130, this Court held that trial by jury is in the "complete discretion" of the Judge in Chambers. And the rule speaks of the "absolute discretion" of the Judge. It is said that this Court, in Hennell v. Ranaboldo, departed from that principle. I think not. The discretion of the Judge is not so complete or absolute that it is free from review in this Court. Otherwise there would be no point in giving an appeal. It can be reviewed just like any other exercise of discretion.
In making this review, it must be remembered that the law has greatly evolved since Hope's case. It is now recognised that in these personal injury cases there should, as far as possible, be some degree of uniformity. This is desirable so that there should be justice between plaintiff and plaintiff and between defendant and defendant. It is not fair or just that one injured man should gettwice as much as another for very similar injuries. The Judges have therefore over the years evolved a scale which is well known and is applied daily up and down the country. This scale can be applied on a trial by Judge alone. But never on trial by jury. If a Judge alone should seriously depart from it, it can be set right in this Court. But not so with a jury.
This principle of uniformity is so important that it is a relevant consideration for a Judge to take into account when he is considering the mode of tibial. That is why I said in Hennell v. Ranaboldo; "In order to achieve uniformity, a case of this kind should be recognised nowadays as fit and proper to be tried by a Judge alone unless there is something exceptional in it". I cannot help feeling that the Judge in this case failed to have regard to this principle of uniformity. This being so, it is a ground on which his decision can be reviewed in this Court. It has always been held that a Judge's discretion can be reviewed if he fails to take into account that which he ought to take into account.
It seems to me that, even in the case of serious injuries, as well as less serious, the ordinary rule should be trial by judge alone, unless there are exceptional circumstances. There are no exceptional circumstances here.
I would, therefore, allow the appeal and order trial by Judge alone.
I agree with the Judgment which the Master of the Rolls has delivered.
This is an important case as affecting the practice with regard to trial by jury. The learned Master ordered a trial by jury in the present case and the learned Judge affirmed his order, and the question we have to consider is whether it is possible, and if possible whether it is right, for this Court to reverse that decision having regard both to the case decided by this Court of Hope v. Great Western Railway Co. 1937, 2 Queen's Bench, page 130, which was a Court in which five members were sitting, and having regard also to the present form of the rule. The material rule is Order 36, Rule 1, paragraph (3) of which says: "Save as provided by rule 2 of this Order and rule 13 of Order 77, the discretion of the Court or Judge in making or varying any order under this rule is an absolute one". The rules were not in quite the same form in 1937 when the case of Hope was decided, but there was no difference which is material for the present purpose, because Lord Wright, in giving the Court's decision then, having cited Section 6 of the Administration of Justice (Miscellaneous Provisions Act) 1933, went on to say that on the face of it that section is putting the matter completely in the discretion of the Court or the Judge without any such qualification as had been imposed by the Act of 1925. There is what we have to face in this case.
In my view it is not possible to say there are any special grounds for not having a jury in this case, or at any rate no strong special grounds. It was contended that there were questions as to the construction of certain provisions of the Factories Act on which the plaintiff is relying. Section 26(l) and Section 27(l) and (2) are relied on by the plaintiff, but those sections were investigated and I was unable to see that there was any difficult question of constructionsuch as to render the case unsuitable for trial by a jury. The other questions which seem likely to arise are questions of causation, questions of foreseeability and, if the decision is in favour of the plaintiff, the question of the quantum of...
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